SECOND DIVISION
March 30, 2004

JUSTICE BURKE delivered the opinion of the court:

Plaintiff Maurice Avenaim appeals from an order of the circuitcourt denying his motion for reconsideration following a benchtrial in which the trial court concluded that a resulting trustexisted in favor of defendant⁽¹⁾ Shea Lubecke with respect to certainreal estate located at 603 South Hough Street, Barrington,Illinois, and that she was entitled to possession of the property. On appeal, Avenaim contends that the trial court erred inconcluding that a resulting trust existed in favor of Lubecke, erred in not concluding that Lubecke's claim was barred by laches,and erred in apportioning the parties' interests in the property. For the reasons set forth below, we vacate the trial court's orderand remand.

This appeal arose from a real estate transaction involvingAvenaim and defendants with respect to the property located at 603South Hough Street. The parties disputed the nature of thetransaction. Avenaim maintained, in his complaint for possessionfiled September 20, 2002, pursuant to the Forcible Entry andDetainer Act (Act) (735 ILCS 5/6-109 (West 2000)), that thetransaction was a lease between him and defendants with an optionto purchase. Conversely, Lubecke maintained that Avenaim held theproperty in trust for her, a resulting trust, which she set forthas an affirmative defense in her answer to Avenaim's complaint.

At a bench trial held on January 21, 2003, Avenaim testified with respect to the circumstances leading to the transaction. Defendants entered into a real estate contract on July 8, 1987,with the owner of the property for a purchase price of $127,500.⁽²⁾ According to Avenaim, because defendants ultimately were not ableto purchase the property as provided for by the contract since theycould not obtain a mortgage, they came to him. Avenaim saw theopportunity to purchase the property as an investment since healready had six to seven properties, some of which were rentalproperties. Avenaim testified that the parties agreed he wouldpurchase the property and be responsible for all payments. In thisregard, defendants assigned the July 8 real estate contract toAvenaim on August 5, 1987. Avenaim admitted that defendants paid$27,000 as a down payment and other costs attendant to the closingand he financed the balance, $101,000, through a trust mortgage andobtained a trust deed for the property.⁽³⁾

Avenaim further testified that exhibit No. 8 was hisattorney's October 20, 1987, letter to defendants confirming thetransaction. This letter stated that Avenaim agreed to purchasethe property and obtain a mortgage, but that defendants agreed topay the down payment. The letter further provided that "Mr.Avenaim has agreed that you would lease the property with an optionto purchase." Thomas signed the acknowledgment on this letter. According to Avenaim, he gave defendants a three-year option topurchase the property at the "fair trade value of the house." Avenaim also identified exhibit No. 11 (not part of the record), adocument entitled "Real Estate Option Agreement" that his attorneyhad prepared. According to Avenaim, this document was fordefendants' purpose to "have it in writing for themselves to securetheir own interest that they could buy the property back from me ata given time and that the deposits which they put in would be partof the configuration at the end, that they would get it back as acredit." Avenaim also testified that he never received a signedcopy of this document from defendants.

Avenaim further testified that the terms of the agreement werethat if defendants failed to exercise the option within threeyears, they would lose it and forfeit the monies they haddeposited. According to Avenaim, defendants originally madepayments directly to him. However, during the pendency ofdefendants' divorce, Lubecke began making payments directly toAvenaim's bank account. Avenaim also stated that the amount ofdefendants' payments did not always equal the amount of hismortgage payment.

Avenaim then identified various letters he had written toLubecke, including February 27, 1998, and June 22 and July 6, 2000. The February letter stated that Lubecke was in default for herFebruary rent payment, and the letter was being forwarded toAvenaim's attorney to start eviction proceedings if the Februaryand March payments were not made by March 10. Avenaim furtherstated in the letter that it was his intention to list the propertyfor sale. The June letter stated that Avenaim received a noticethat Lubecke's June rent check was returned for insufficient funds. Avenaim stated in the letter that a $50 late fee would be added tothe "June rent payment," as well as a $10 fee for the bank chargeto his account for her returned check. Avenaim further noted inthe letter that Lubecke had a pattern of late payments or non-cashable payments frequently for the past 10 years. According toAvenaim, this showed a lack of responsibility on Lubecke's part andwas the reason he was only able to give her a month-to-month rentalaccommodation. Lastly, the July letter stated that Avenaim had notreceived Lubecke's June or July rent payment and she risked beingevicted. Avenaim testified that Lubecke never responded to theseletters. Avenaim further testified that over the 14-year perioddefendants and/or Lubecke resided in the home, he had sentapproximately 25 to 30 such letters. According to Avenaim,defendants and/or Lubecke never made any claim to having anownership interest in the home until this lawsuit.

Avenaim further testified that on July 11, 2001, he refinancedthe property in the amount of $275,000, at which time he paid offthe approximate $83,000 balance on the original mortgage.⁽⁴⁾ Avenaimalso identified exhibit No. 20 (not part of the record) as hislandlord's insurance policy.

On August 5, 2002, Avenaim sent a letter of eviction toLubecke, terminating her month-to-month tenancy, effectiveSeptember 5. Avenaim commenced this lawsuit on September 20.

On cross-examination, Avenaim admitted that the total amountdefendants had paid with respect to the property prior to theclosing on the property was $30,882.66. Avenaim further statedthat he suggested the three-year limit on the option to purchasewhen the parties first discussed and entered into the transaction. According to Avenaim, after he sent the "Real Estate OptionAgreement" to defendants, he followed up on it, and Thomas told himhe had no money, no credit, and, therefore, would not be able tobuy the house back. Avenaim further testified that defendantssometimes paid the insurance on the property, but did not do so allthe time. In addition, Avenaim stated that defendants did notdirectly pay the real estate taxes, but did do so as part of theirrental payments. Avenaim then rested.

Thereafter, Lubecke testified on her own behalf. She statedthat she had resided at the Hough address since December 1987. Shefurther stated that Thomas signed the October 20, 1987, letter onher behalf. According to Lubecke, in the parties' initialdiscussions, because Avenaim was concerned about capital gains, heagreed to purchase the property and then transfer it to defendantsfor the amount of the original purchase contract. However, Lubeckethen responded to her attorney's next question as follows:

"Q: Had Mr. Avenaim and you and yourhusband agreed that you would have an optionto purchase the property?

A: Yes."

Lubecke denied that either she or Thomas and Avenaim ever agreed tolimit the number of years on the option contract. Lubecke alsodenied that Avenaim ever advised her that the option had expired.

Lubecke further testified that in May 2000, during the courseof her divorce, she attempted to exercise the option, pursuant toa letter to Avenaim. According to Lubecke, Avenaim responded that"of course it's [y]our property" and that Thomas should receive hisfair share of it in the divorce. Lubecke also testified thatAvenaim stated the three of them needed to talk with respect to howto turn the property over to defendants.

Lubecke further testified that since October 1987, she hadpaid approximately $222,000 in "so-called" rent. In this regard,she identified defendant's exhibit No. 2 (not part of the record),her spreadsheet, showing that she had expended a total of$250,675.07 on the property. Lubecke also testified thatdefendant's exhibit No. 3 (not a part of the record) showed themaintenance and expenditures for maintenance she had made on theproperty, including a new furnace and two new water heaters, in theapproximate amount of $51,000.

On cross-examination, Lubecke admitted that the last paymentshe made to Avenaim was September 5, 2002, or, at the inception ofthis lawsuit. Lubecke further admitted that she did not bring hercancelled checks for maintenance or her payments to Avenaim tocourt, but stated she had most of them. Lubecke also stated that,at some time, she sent a letter to Avenaim with respect to repairsneeded to be made on the house. She further stated that shesubsequently paid for them. Lubecke also admitted that, withrespect to her May 16, 2000, divorce decree, there was a paragraphstricken that stated neither of the parties (Shea or Thomas) hadany interest in any real estate. According to Lubecke, thisparagraph was stricken because it was incorrect. The decree wasthen admitted into evidence, but is not a part of the record here. Lubecke then rested. The trial court took the matter underadvisement and allowed the parties to file posttrial briefs.

On February 2, both parties submitted posttrial briefs to thecourt. Avenaim argued that Lubecke was barred by laches fromasserting any interest in the property.

On February 24, 2003, the trial court entered its judgmentorder. The court set forth seven specific findings, the followingof which are set forth verbatim:

"1. On July 8, 1987, the defendant[Shea] and her then spouse [Thomas]contracted to purchase the propertycommonly known as 603 S. HoughStreet ***. The defendant and herspouse were not able to obtain amortgage and the plaintiff [Avenaim]agreed that he would obtain amortgage in his name for the benefitof the defendant and her spouse.

2. The purchase *** closed on October21, 1987 ***. As of the ClosingDate, the plaintiff and thedefendant understood and intendedthat the plaintiff would not haveany beneficial interest in theProperty.

***

4. As of the Closing Date, theplaintiff and the defendantunderstood and intended that thedefendant was obligated to pay theremainder of the purchase price ofthe Property. The defendant madepayments equal to the mortgagepayments on the property ***. Sincethe Closing Date, the defendant paidthe real estate taxes on theProperty and paid for allimprovements to and maintenance onthe Property.

5. On the Closing Date, the plaintiff,solely as an accommodation to thedefendant, obtained in theplaintiff's name a mortgage on theProperty. *** The defendant madeall payments on the OriginalMortgage from October 21, 1987through August 2002." (Emphasisadded).

Based upon these findings, the trial court concluded, by virtue ofa resulting trust, Lubecke was the beneficial owner of the propertyand found that she was entitled to possession of the property.

Avenaim's subsequent motion for reconsideration of theFebruary 24, 2003, judgment was denied. This appeal followed. OnMay 28, the trial court entered an order, by agreement of theparties, to stay its judgment pending this appeal.

Our standard of review with respect to a trial court's denialof a motion to reconsider is as follows:

" 'The decision to grant or deny a motionfor reconsideration lies within the discretionof the circuit court and will not be reversedabsent an abuse of that discretion [Citation.] The intended purpose of a motionto reconsider is to bring to the court'sattention newly discovered evidence, changesin the law, or errors in the court's previousapplication of existing law.' [Citation.]" Chelkova v. Southland Corp., 331 Ill. App. 3d716, 729, 771 N.E.2d 1100 (2002).

Thus, the question before us is whether the trial court here erredin applying the law of resulting trusts. "The standard of reviewwe apply when a challenge is made to a trial court's rulingfollowing a bench trial is whether the trial court's judgment isagainst the manifest weight of the evidence." Judgment ServicesCorp. v. Sullivan, 321 Ill. App. 3d 151, 154, 746 N.E.2d 827(2001). "A judgment is against the manifest weight of the evidenceonly when an opposite conclusion is apparent or when findingsappear to be unreasonable, arbitrary, or not based on evidence." Judgment Services Corp., 321 Ill. App. 3d at 154.

A forcible entry and detainer action is a limited proceedingthat determines the issue of who is entitled to immediatepossession. American National Bank by Metroplex, Inc. v. Powell,293 Ill. App. 3d 1033, 1044, 691 N.E.2d 1162 (1997). Forcibleentry actions are summary, statutory proceedings, and "[a] courthearing a forcible entry and detainer claim is considered 'a courtof special and limited jurisdiction.' [Citation.]" Yale Tavern,Inc. v. Cosmopolitan National Bank, 259 Ill. App. 3d 965, 971, 632N.E.2d 80 (1994). "Matters not germane to the issue of possessionmay not be litigated in a forcible entry and detainer action." Yale Tavern, Inc., 259 Ill. App. 3d at 971. However, those mattersgermane to such a claim may be raised. Powell, 293 Ill. App. 3d at1044. " 'Claims which are germane to the issue of possessiongenerally fall into one of four categories: (1) claims asserting aparamount right of possession; (2) claims denying the breach of theagreement vesting possession in the plaintiff; (3) claimschallenging the validity or enforceability of the agreement onwhich the plaintiff bases the right to possession; and (4) claimsquestioning the plaintiff's motivation for bringing the action.' [Citation.]" Powell, 293 Ill. App. 3d at 1044. Title disputes,particularly serious title disputes, cannot be determined in aforcible entry and detainer proceeding. Continental IllinoisNational Bank & Trust Co. of Chicago v. Wilson, 103 Ill. App. 3d357, 360, 431 N.E.2d 1334 (1982); Kitzer v. Rice, 90 Ill. App. 2d72, 77, 234 N.E.2d 115 (1967); Layzod v. Martin, 305 Ill. App. 1,4-5, 26 N.E.2d 423 (1940). But see Wood v. Wood, 284 Ill. App. 3d718, 722, 672 N.E.2d 385 (4th Dist. 1996) (although stating thatforcible entry and detainer actions are to determine possession,not title, the court nonetheless allowed a determination ofownership on the basis it was germane to the action); Rodriguez v.Owaynat, 137 Ill. App. 3d 1017, 1021-22, 485 N.E.2d 438 (1985)(although stating that serious title disputes are not properlyresolved in forcible entry and detainer actions, the court alsostated that evidence of ownership may be germane to the issue ofpossession).

Because the instant case involves a serious title dispute, thetrial court should not have made a determination of title based onthe Act. Exacerbating the fact that this proceeding was not theappropriate place to ascertain title is the fact that Lubecke didnot properly raise the issue. A counterclaim is to be used when adefendant seeks affirmative relief. Norman A. Koglin Associates v.Valenz Oro, Inc., 176 Ill. 2d 385, 393, 680 N.E.2d 283 (1997). Ananswer or affirmative defense merely seeks to defeat theplaintiff's claim. Norman A. Koglin Associates, 176 Ill. 2d at393. Lubecke raised the question of title, i.e. through aresulting trust, in her affirmative defense. However, Lubecke wasactually seeking affirmative relief from the court, which reliefshould have been sought by way of a counterclaim.

Thus, we note that not only was the issue of title notproperly raised, but it was not properly determined in thisproceeding. Despite the trial court's error in adjudicating titlein this action, we nonetheless address the substantive issue raisedin the interests of judicial economy and because neither party,particularly Avenaim, objected to the trial court's decision toadjudicate title.

Avenaim contends that the trial court's judgment was againstthe manifest weight of the evidence and, therefore, it erred indenying his motion to reconsider. Specifically, Avenaim maintainsthat the evidence presented by both parties clearly demonstratedthat they intended something other than a resulting trust, i.e., alease with an option to purchase. According to Avenaim, both ofthe parties' testimony demonstrated that the transactionconstituted a lease with an option to purchase. Avenaim maintainsthat while the parties' testimony differs on the details of theoption, there was no conflict as to the fact that it was in fact alease with an option. Avenaim further argues that it is notlegally or conceptually possible to both own a property and toretain the option to purchase it. Ultimately, Avenaim maintainsthat because the transaction can reasonably be interpreted assomething other than a resulting trust, the trial court'sconclusion that it was in fact a resulting trust is against themanifest weight of the evidence.

Lubecke contends that the trial court's decision is notagainst the manifest weight of the evidence because its decisionwas reasonable. According to Lubecke, Avenaim cannot show that thetrial court's seven findings were unreasonable. Lubecke also makesthe argument, which we find unintelligible, that "the lease and anoption does not compel the conclusion urged by the plaintiff. Infact, the lease and option can be viewed as an attempt to documentthe defendant's obligation to make the monthly payments under theoriginal mortgage *** and the defendant's right to take title tothe property upon payment of the outstanding balance of theoriginal mortgage." Lubecke further maintains that the evidencedemonstrated that she paid the down payment and made all mortgagepayments on the property and, therefore, a resulting trust exists.

A resulting trust, or purchase money resulting trust, "ariseswhere one person purchases property with his own funds and title istaken in the name of another." Hofferkamp v. Brehm, 273 Ill. App.3d 263, 272, 652 N.E.2d 1381 (1995). A resulting trust can ariseonly at the time of the conveyance, and "the payor's intention atthat time determines whether a resulting trust may be found." Inre Estate of Koch, 297 Ill. App. 3d 786, 788, 697 N.E.2d 931(1998). "The courts will impose a resulting trust when thecircumstances surrounding a conveyance, or the acts and expressionsof the parties, make it clear that the parties intended such aresult or raise the inference that the parties intended to createa trust." 90 C.J.S.2d Trusts